TITO C. LLEDO, Petitioner
OFFICE OF PERSONNEL MANAGEMENT, Respondent
Petition for review of the Merit Systems Protection Board in
C. Lledo, San Narcisco, Zambales, Philippines, pro se.
Borislav Kushnir, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for respondent. Also represented by Chad A. Readler,
Robert E. Kirschman, Jr., Franklin E. White, Jr.
Newman, Wallach, and Chen, Circuit Judges.
Newman, Circuit Judge.
Lledo appeals the decision of the Merit Systems Protection
Board ("Board") that affirmed the Office of
Personnel Management's ("OPM") reconsideration
decision, denying his application for deferred retirement and
his request to make a deposit in the Civil Service Retirement
and Disability Fund ("CSRDF"). Lledo v. Office
of Pers. Mgmt., MSPB Docket No. SF-0831-16-0799-I-1,
2016 WL 7667554 (Jan. 6, 2017) ("Board Op."). The
Board's decision is in accordance with law, and is
1968 to 1991, Mr. Lledo was employed by the United States at
the U.S. Navy Public Works Center in Subic Bay, Philippines.
His initial position was as an "Apprentice
(electrician)"-a position designated as "excepted
service - indefinite appointment." Mr. Lledo resigned
with the designated severance pay on November 13, 1991.
During his 23 years as a Navy employee, Mr. Lledo worked in
various positions, culminating in a final position as a
Telephone Installation and Repair Foreman I.
March 31, 2014, Mr. Lledo filed an application for deferred
retirement benefits under the Civil Service Retirement System
("CSRS"), and requested to make a post-employment
deposit into the CSRDF. The OPM denied the application and
deposit request. Mr. Lledo appealed to the Board, arguing
that he was entitled to CSRS benefits under 5 C.F.R. §
831.303(a) and "based upon [his] non-deduction service
ending involuntarily [on] September 30, 1982."
Resp't's App. 20 (explanation at section 25 of OPM
form); see also Board Op. at 4-5.
Board's administrative judge affirmed OPM's denial,
stating that "all of [Mr. Lledo's] appointments with
the Navy, including his final position, were either
not-to-exceed ("NTE") appointments or indefinite
appointments in the excepted service." Board Op. at 2.
The administra- tive judge affirmed the OPM decision, stating
that "[w]hile [Mr. Lledo] has shown that he had
sufficient creditable federal service, he has failed to show
that any of that service was performed in a position covered
under the [Civil Service Retirement Act]." Board Op. at
6. This initial decision became the Board's final
decision, and Mr. Lledo appeals.
review a decision of the Board to determine whether it is
"(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence." 5
U.S.C. § 7703(c); Whitmore v. Dep't of
Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012). Substantial
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Simpson v. Office of Pers. Mgmt., 347 F.3d 1361,
1364 (Fed. Cir. 2003) (quoting Consol. Edison Co. of N.Y.
v. NLRB, 305 U.S. 197, 229 (1938)).
to 5 U.S.C. § 8333(a)-(b), to qualify for a CSRS
retirement annuity, an employee must have performed at least
five years of creditable civilian service, and must have
served at least one of his last two years of federal service
in a covered position-i.e., service that is subject to the
Civil Service Retirement Act. Quiocson v. Office of Pers.
Mgmt., 490 F.3d 1358, 1360 (Fed. Cir. 2007);
Casilang v. Office of Pers. Mgmt., 248 F.3d 1381,
1382 (Fed. Cir. 2001). While nearly all federal service is
creditable service, covered service is a narrower subset of
federal service. Rosete v. Office of Pers. Mgmt., 48
F.3d 514, 516 (Fed. Cir. 1995); see also Aquino v. Office
of Pers. Mgmt., 451 Fed.Appx. 941, 942 (Fed. Cir. 2011).
Temporary, intermittent, term, and excepted indefinite
appointments are not covered positions. 5 C.F.R. §
831.201(a); Quiocson, 490 F.3d at 1360.
Board found that Mr. Lledo's employment was creditable
civilian service. Board Op. at 6. However, the Board also
found that Mr. Lledo did not ever serve in a covered
position, citing the requirement for covered service in one
of his last two years of federal service, that is, during the
period between November 13, 1989 and November 13, 1991.
See id. at 4. The Board specifically observed that
"all of [Mr. Lledo's] appointments with the Navy,
including his final position, were either not-to-exceed
('NTE') appointments or indefinite appointments in
the excepted service." Id. at 2; see also
id. at 5 (discussing how Mr. Lledo's appointment
forms supported this conclusion). The Board further observed
that the absence of any appointment forms "indicating
that [Mr. Lledo] was in a covered position combined with the
evidence that he was not required to contribute to the [CSRD]
Fund while he was employed with the Federal government, and
evidence that he was provided severance pay at his
resignation" led the Board to conclude that Mr. Lledo
was never in a "covered position." Board Op. at 5.
Mr. Lledo has not disputed these findings. See
Resp't's App. 19 (indicating in section 6 of the OPM
form that Mr. Lledo's appointment is
"Excepted"). Because substantial evidence supports
the Board's conclusion that Mr. Lledo's service was
excluded from CSRDF coverage, the decision that Mr. Lledo is
not entitled to CSRS benefits is in accordance with law.
See Quiocson, 490 F.3d at 1360 ("Mr.
Quioc-son's appointment forms indicate that his ...